Citation: BP v. Regina, SW v. Regina [2006] NSWCCA 172
Court: New South Wales Court of Criminal Appeal
Date: 1 June 2006
Judge(s): Hodgson JA; Adams J; Johnson J
Background
Two Aboriginal boys, aged 12 and 11 at the time of the alleged offences, were tried in the District Court on an indictment containing four counts of aggravated sexual intercourse without consent. The offences were alleged to have occurred in Kempsey on 5 November 2003. Both appellants pleaded not guilty, and the matter proceeded before a jury.
Following trial, the jury returned guilty verdicts on several counts. The older appellant (BP) was convicted of sexual intercourse without consent and digital penetration. The younger appellant (SW) was convicted of digital penetration. Both were sentenced, with BP receiving a term of imprisonment and SW receiving a suspended sentence.
Both appellants appealed their convictions to the Court of Criminal Appeal. Their sole ground of appeal concerned the doctrine of doli incapax: whether the prosecution had adequately proved, beyond reasonable doubt, that each child understood that what he was doing was seriously wrong, rather than merely naughty or mischievous.
Legal Issues
- Whether the trial judge's directions to the jury on doli incapax were adequate
- Whether the jury's verdicts were unreasonable, given the evidence going to each appellant's understanding that his conduct was seriously wrong
- Whether certain evidence, including a post-arrest statement made by SW to police, was properly considered in establishing doli incapax
Decision
The Court confirmed that, for a child aged between 10 and 14, the prosecution must prove beyond reasonable doubt that the child knew what he or she was doing was seriously wrong, not merely naughty or mischievous. This is a distinct element of the Crown case, separate from proof of the offence itself.
On the directions given in relation to BP, the Court was satisfied that the trial judge's summing-up adequately drew the jury's attention to the correct standard. The Court noted that no complaint about the directions had been raised at trial, and found the evidence supporting BP's understanding of the serious wrongfulness of his conduct to be strong. The conduct itself, including BP's repeated laughter, his efforts to silence the complainant, and his plea not to be reported to police, all supported the inference that he knew his actions were seriously wrong.
The case against SW on doli incapax was acknowledged to be less strong. The Court found that a statement obtained from SW by police after he had declined to speak with them should be given no weight. The Court characterised the police officer's post-refusal question, asking whether SW knew it was wrong to hurt or touch someone without their consent, as an improper attempt to elicit an admission on an element the prosecution was required to prove independently. Even SW's affirmative nod to that question was held to be of no value in establishing that, at the time of the events, he appreciated the serious wrongfulness of his conduct.
Despite rejecting that evidence, the Court upheld SW's conviction. The psychologist's statement, together with the evidence that SW had placed his hand over the complainant's mouth at the older boy's request while she screamed and struggled, were sufficient to support the jury's conclusion that SW understood his conduct was seriously wrong. The Court was not satisfied that the verdict was unreasonable, and declined to intervene.
Orders Made
- Appeal of BP dismissed
- Appeal of SW dismissed
Key Takeaways
- The doli incapax presumption requires the prosecution to prove, beyond reasonable doubt, that a child aged between 10 and 14 knew that what they were doing was seriously wrong, not merely naughty or mischievous. This is a distinct element from proof of the offence.
- In dismissing both appeals, the Court of Criminal Appeal confirmed that the conduct of the accused during the offence itself can form part of the evidence from which a jury infers the requisite knowledge, and that juries are well placed to make that assessment.
- Where a child has declined to speak with police, a subsequent question from an officer seeking an admission as to an element the prosecution must independently prove was found to be improper, and any response was given no weight.
- A post-arrest assent to a proposition that some conduct was "wrong" does not, without more, establish that the child knew the relevant act was seriously wrong at the time it was committed.
- No error was established in the trial judge's directions on doli incapax, particularly where no objection to those directions was raised at trial.
Legislation and Cases Referenced
Cases:
- C v. DPP [1996] 1 AC 1
- R v. ALH (2003) 6 VR 276
- R v. CRH, NSWCCA, 18 December 1996
- Stapleton v. The Queen (1952) 86 CLR 358
- The Queen v. M (1977) 16 SASR 589
Note: No specific legislation was identified in the metadata or the available text of this decision.